Who is entitled to assess the powers of an advocate under the contract?

As a general rule, the qualification and disciplinary commissions of the bar cannot assess the powers of a lawyer to represent or defend arising from a legal aid agreement.

This was pointed out by the Bar Council of Ukraine, which today, on April 30, clarified Articles 14, 15, 17 of the Rules of Professional Conduct regarding the attorney-client relationship and the limits of the QDCB's review of the grounds for bringing an attorney to disciplinary liability.

Lidiya Izovitova, the President of the UNBA, BCU, the speaker on this issue, emphasized the importance of this issue, which the BCU has not yet paid due attention to. And it was considered in connection with the appeal of the advocate, whose powers were confirmed by the economic court in the course of the case. But later, the authority of the advocate was questioned by the QDCB of one of the regions upon the complaint of the procedural opponent.

A significant part of the proceedings that are currently being considered by the disciplinary chambers are in one way or another related to the assessment of legal aid agreements between the attorney and the client. At the same time, they do not always pay attention to the fact that, pursuant to Article 27 of the Law «On the Bar and Practice of Law», general requirements of contract law apply to this type of agreement, which are of priority.

Since the legal aid agreement is subject to the general requirements of contract law defined by civil law arising from the emergence, validity and termination of the agreement, as well as to the authority to interpret them (according to Article 213 of the Civil Code, it is the court), the qualification and disciplinary commissions of the Bar and the Higher Qualification and Disciplinary Commission of the Bar do not have the authority to assess the legal relationship between the client and the attorney, as well as the powers of the latter (the legal aid agreement), authorized by law to provide FLA, by applying the Rules of Professional Conduct in the disciplinary proceedings.

At the same time, the BCU clarified that this rule does not apply to the conclusion of legal aid agreements by lawyers who have suspended or terminated their legal practice or who conclude them under conditions of incompatibility (MPs, judges, prosecutors, civil servants, military personnel or persons performing alternative military service). The actions of such persons should still be assessed by the QDCB in terms of their non-compliance with the requirements of the Law and the Rules of Professional Conduct. Therefore, in the event of a disciplinary complaint, the QDCB must establish the availability of information about the advocate in the URAU (regarding suspended or terminated practice of law, circumstances of incompatibility, as well as the availability of the status of an advocate to the person who entered into the legal aid agreement).

The Bar Council of Ukraine also concluded that the Law does not provide the QDCB with the right to withdraw from the disciplinary complaint on its own initiative, as this is a violation of the guarantees of the practice of law.